Judgement 1693380378
Judgement 1693380378
Judgement 1693380378
11 of 2022
RESERVED ON : 06.07.2023
PRONOUNCED ON : 18.08.2023
CORAM:
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Arbitration O.P.No.11 of 2022
ORDER
This Arbitration Original Petition has been filed seeking to set aside
the award passed by the learned Arbitrator, Chennai dated 02.02.2022 in the
Petition in brief:-
respondent’s school; the agreement was for six years; as per the
the petitioner and the respondent with regard to the payments; since the
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arbitration; the said order was not challenged by the respondent; the
inadmissible in law due to deficit stamping and held that the respondent is
liable to pay a sum of Rs.8,16,666/- to the claimant with interest at the rate
by the petitioner had chosen to reject the claim in view of the deficit fee;
aggrieved by the said award, the petitioner had filed this Arbitration
4. The learned counsel for the petitioner submitted that the award
of the learned sole Arbitrator is erroneous, contrary to law and facts. The
award was passed without application of mind and evaluating the evidence
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not to have been rejected on the allegation of deficit stamp duty; the very
same question was raised by the respondent before the earlier Arbitrator by
35(b) of the Indian Stamps Act, 1899 and penalty could have been levied
not have been rejected. Since the arbitral award passed by the learned
award does not fall within any of the exceptions contemplated under Section
34 of the Arbitration Act for getting it set aside. An arbitral award cannot
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clause, the learned Arbitrator has decided to proceed with the proceedings.
Supreme Court held in N.N.Global Mercantile Private Ltd. vs. Indo Unique Flame
Ltd. and others reported in 2023 SCC Online SC 495. In the said judgment, it is
held that if the agreement is not duly stamped, its terms and conditions
cannot be enforced and it is not admissible in law. The said position of law
has been followed in various judgments of the Hon'ble Supreme Court and
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Nadu Stamp Rules 3(iii) states that the “stamps purchased in Tamil Nadu
State shall alone be used for instruments chargeable with duty under the
the Arbitration and Conciliation Act 1996 to set aside the arbitral award and
that itself is not maintainable. The arbitral award cannot be set aside except
considered and passed the award by giving proper reasons and hence this
Discussion:-
stamping. Irrespective of the issue of stamp duty, the learned Arbitrator had
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petitioner and the respondent dated 25.02.2017 has been marked as Ex.C.1.
Even though the learned Arbitrator had chosen to rely on the decision of the
Hon'ble Supreme Court held in Jupudi Kesava Rao vs. Pulavarthi Venkata
instrument is found to have been not duly stamped, the authorities specified
in the above provision, shall impound the same and collect duty. Section 33
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made under Section 42(2) of the Act. However, as per Section 36, if an
called in question at any stage of the proceedings on the ground that the
instrument has not been duly stamped, except as per the procedure
reads as under:-
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under Section 61. For the sake of clarity Section 61 is extracted as under:-
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12. The learned Arbitrator has relied the above judgement, despite
and that can be done only on the original instrument; hence there is no
instrument itself by waiving the obligation to pay the deficit stamp duty
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consider the same for want of sufficient stamp duty. Further, the learned
Stamp Act, by stating that what was in evidence is only a copy of the
is insufficiently stamped.
and not a copy. It is obviously because Xerox copy of the document would
only contain an image of the stamp and for the image of a stamp no value
note and a Xerox copy of the currency. While the original currency note has
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15. Only in view of the above reason, the Hon’ble Supreme Court
has held in Jupudi Kesava Rao that unless the original document is impounded
its copy can not be received as a secondary evidence. In fact the Court went
or penalty.
16. Hence, the learned Arbitrator ought not to have allowed the
stamped Agreement. As per the legal position held in Jupudi Kesava Rao,
penalty.
17. Having admitted a copy and marked the same as an exhibit and
learned Arbitrator had denied the petitioners to get the benefits of Section
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the Hon’ble Supreme Court held in N.N.Global Mercantile Private Ltd. vs. Indo
Unique Flame Ltd. and others reported in 2023 SCC Online SC 495. In the said
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expressed its disapproval to the view of the Allahabad High Court in Mst
Bittan Bib. The Allahabad High Court has observed in the above judgment
It is asserted by the Hon’ble Supreme Court that the above view of the
Allahabad High Court in Mst Bittan Bibi v. Kuntu Lal, is not the object of
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courts can refrain from acting upon it. Though Section 36 only implies the
acceptance of a document after paying the impounded duty and getting the
seal of approval under Section 42(2) of the Stamp Act, it doesn’t state
not state in any explicit terms that those documents admitted and marked in
appreciation of evidence.
actual due. Even in that case, it has be presumed that the impoundment and
collection of duty within the meaning of Sections 33 and 35 of the Act has
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learned Arbitrator can not refrain from analyzing and appreciating its
22. In the case on hand, the learned Arbitrator has admitted the
document itself. Once an act starts, its sequence can not be averted. But the
learned Arbitrator has not relied the terms of the contract even though the
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foundation. Since the said process is in conflict with the basic notion of
rendering justice, I feel the petitioner has made out a ground under Section
which has the revisional power under Section 61 of the Stamp Act. Though
Section 33 of the Stamp Act, this Court is empowered to revise the act of
represent the fiscal value of the public revenue, failure to collect duty by
petitioner himself has submitted that the learned Arbitrator ought to have
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instead of not appreciating the evidentiary value of the marked copy of the
same. (Ex.C1).
the Registry shall impound and collect the stamp duty before issuing a
certified copy of this order to the petitioner. Since the stamp on the
instrument is said to be the Stamp of Kerala, the rest of the stamp duty
stamp of Tamil Nadu and then make due endorsement. After such
Understanding along with a copy which has been already marked as Ex.C1.
and the award dated 02.02.2022 passed by the learned sole Arbitrator,
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and the matter is remitted back to the same Arbitrator to reappraise the
dispose it afresh, on the condition that the petitioner shall produce the
impounded for paying the duty, will deprive the petitioner from getting the
benefit of this order and in such case the Petition will be dismissed. Hence
18.08.2023
Speaking order
Index : Yes
Neutral Citation : Yes
sri
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R.N.MANJULA, J.
sri
18.08.2023
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